Equal employment laws and policies in China - Yale … employment laws and policies in China . ......

9 Individual rights protection or social management?

Equal employment laws and policies in China

Su Lin Han

Introduction

The principle of equality and nondiscrimination has long been embraced by the Chinese

Constitution and prescribed by many of the country’s equal employment laws and policies.

Despite such commitment, China has not implemented key equal employment laws and

policies aimed at protecting specific disadvantaged groups such as women and people with

a disability. Chinese courts routinely refuse to handle employment discrimination lawsuits.

Government regulators rarely take enforcement actions against employers for

discriminatory employment practices. Much of the enforcement difficulties can be

attributed to a lack of clear judicial and legislative guidance for courts to handle

discrimination claims. The lax enforcement by government regulators also reflects the

issue’s low policy priority. However, even more inherent obstacles stem from the

government’s distrust of the use of private enforcement in individual rights protection

cases. The government’s overarching goal of maintaining social control and stability is

often at odds with the decentralized nature of privately-initiated litigation of individual

rights claims. This distrust is not new and emanates from the PRC’s history of preferring

collective, non-adversarial approaches to dispute resolution. But it has blunted the

Equal employment laws and policies in China 2

government’s resolve to overcoming significant legal deficiencies that prevent a proper

functioning of its existing judicial mechanism for resolving individual discrimination

claims. Instead, the government continues to rely on traditional ‘top-down’ social

management tools to marshal the resources of a centralized political and bureaucratic

machinery outside the legal framework to tackle the country’s employment discrimination

problem.

As China’s leadership turns to its brand of ‘rule of law’ as a new strategy to improve

governance and bolster the Party’s political legitimacy, a central concern is how to

improve the delivery and benefits of rule of law to an increasing ‘rights conscious’

populace through stronger enforcement of individual rights protection promised by

existing laws. The challenge is how this can be accomplished given the unmistakable signal

of the CPC’s 4th Plenum of the Party-state’s determination to maintain a firm grip on issues

containing the potential to impact on social stability. This chapter argues that alternative

enforcement models which enhance the role of the government in delivering its promise of

individual rights protection may be a workable compromise between the government’s

strong desire to manage employment discrimination as a collective social issue on the one

hand, and the ability of private citizens to benefit from legalized individual rights protection

on the other hand. Accomplishing such paradoxical goals, however, will be a difficult

balancing act.

China’s challenges in enforcing employment discrimination laws and policies


Historically, implementation of China’s longstanding principle of equality and

nondiscrimination was carried out as a part of the state’s central planning function - outside

the legal framework. Under China’s centrally planned economy, the state owned, managed

and regulated all businesses called danwei. It was able to enforce equal employment

policies, most notably gender equality and protection measures, through a centralized

worker allocation system, uniform hiring and firing rules, and informal dispute resolution

mechanisms within each Danwei directly supervised by government regulators.1

As Yueh shows in Chapter 5, the introduction of market-based reforms in the late 1970’s

ushered in rapid growth of a vibrant private sector and a burgeoning labor market in China,

along with a diminished central planning role of government in regulating employment

relations. Employers, including government and state-owned companies, now have more

autonomy in hiring and firing decisions. At the same time, employment discrimination has

proliferated. This has resulted in increased labor tension and rising demand from a more

rights conscious workforce to have grievances heard and claims resolved.

Such pressure has led to the adoption of several important national legislations to protect

equal employment rights of special disadvantaged groups such as women and people with

disabilities. Most notable is the 2008 Equal Employment Promotion Law (EPL). 2 In

addition to providing administrative penalties-based public enforcement, the EPL opened

the door for private rights of action against employment discrimination by allowing

workers to sue their employers in court.3 Private enforcement of statutes through court


litigation has a long tradition in many legal cultures and has played a major role, for

example, in the enforcement of U.S. federal civil rights statutes and the development of

U.S. equal employment discrimination laws.4 The introduction of private rights of action by

the EPL and other Chinese laws, such as recent anti-trust laws, reflects the influence of

international legal development and the progression of rule of law in China over the past

decade and evidenced in more tolerance for non-state actors to play a bigger role in

enforcing legal protections. At the same time, this new ‘tolerance’ carries major challenges

to the state’s long-standing practices of top-down control and management of rights

protection issues with broader social stability implications.

Limited Private Enforcement

Since the adoption of the EPL, there has been an uptick in employment discrimination

lawsuits, often brought by younger, more educated plaintiffs with the support of public

interest lawyers. According to one study, approximately 70 antidiscrimination cases were

brought or accepted by courts between 2008 and 2011, compared to 20 or so of such cases

between 2000 and 2007.5 However, major legal and political hurdles have prevented court

litigation from gaining sufficient traction in China to become an effective private

enforcement tool of employment discrimination laws.

For example, notwithstanding the EPL’s express authorization for individuals to file

employment discrimination claims with China’s Basic People’s Courts, many courts refuse

to accept even the filing of such claims. A common explanation for such rejection is that


employment discrimination is not included in the list of ‘permitted civil causes of action’

issued by China’s Supreme People Court. 6 Among the successful filings, a substantial

number involved plaintiffs who were carriers of Hepatitis B (HBV carriers), 7 but their

underlying causes of action were often violations of privacy rights, not employment

discrimination.8 Gender and disability cases are rare, and they too tend to be accepted

where causes of action are ‘violation of personal rights’ rather than employment

discrimination.9 Chinese courts also struggle with a lack of legal and judicial guidance on

substantive legal issues such as what constitutes ‘employment discrimination’ and who

bears the burden of proof. Neither the EPL nor any other laws defines ‘employment

discrimination’. Questions also remain as to whether the burden of proof, which generally

rests on plaintiffs in civil lawsuits, can be shifted to defendant employers in employment

discrimination cases.10

Even more daunting for private enforcement are political challenges. The decentralized

nature of privately-initiated litigation which is essential to a ‘bottom-up’ approach to

enforcing individual rights claims is inherently at odds with the government’s long-

standing ‘command-and-control’ approach to managing systemic social problems which

places a premium on the state’s ability to maintain social control and order. The alliance

between discrimination victims and nongovernmental rights advocacy in bringing the so-

called “impact litigation” in employment discrimination appears to have heightened

political sensitivity about private litigation. This is due, in part, to the perceived threat of

private litigation to state control of the direction and outcome of social changes that are an

inevitable consequence of such litigation.


Chinese courts, which have thus far enjoyed limited independence in the adjudication of

individual cases and whose decisions are directly influenced by the state’s political agenda

and policy priorities, are unable and unwilling to take the lead in resolving individual

employment discrimination claims as it is an area fraught with political sensitivity. Instead,

the general attitude of courts toward discrimination cases has been characterized as

‘restraint’ and ‘judicial non-activism’.11 Since 2008, the Supreme People’s Court has twice

amended its list of permitted civil causes of actions. Yet ‘employment discrimination’ has

not been listed. Nor has the High Court issued any judicial interpretation or guiding cases

to clarify the outstanding legal issues for lower courts.

Victims of employment discrimination currently have few non-judicial alternatives for

bringing their claims. Despite improvements to China’s labor arbitration, proceedings are

generally closed to employment discrimination claims as the scope tends to be limited to

disputes arising out of existing labor contracts and labor relations.12 This precludes claims

against discriminatory hiring practices. The prospect of bringing a separate employment

discrimination action for labor arbitration, as opposed to an auxiliary claim to labor contract

dispute, is also dim as neither the EPL nor the labor arbitration law expressly authorizes

such claims to be handled through labor arbitration.13

Weak Administrative Enforcement

Under the EPL, China’s Ministry of Human Resource and Social Security (MOHRSS),

often referred to as the ‘relevant labor administration department in charge’, is responsible


for overseeing compliance. This includes establishing a complaints handling system to

accept and verify complaints and to take action against violations. 14 However, the

prevailing view among Chinese academics (e.g. Liu Minghui 2014: 46) and likely also held

by MOHRSS, is that the EPL has failed to grant specific labor supervisory authority

necessary for MOHRSS to take administrative enforcement action against employment

discrimination.15 The available evidence suggests that in practice, MOHRSS rarely accepts

or investigates employment discrimination complaints. For example, in 2012, female

college students from eight Chinese cities filed complaints with the local MOHRSS offices

alleging gender discrimination by 267 employers for posting ‘male only’ hiring ads online.

Only 30 per cent of their complaints received a response from MOHRSS and only one

employer was issued a fine. The students alleged that most MOHRSS offices were

unwilling to handle their complaints.16

Two recent high-profile court decisions, hailed by domestic media as China’s first ‘gender

and residency discrimination’ cases, underscore the challenges and uncertainty faced by

private litigants. The first is a 2013 gender discrimination lawsuit ended in a court

settlement. It involved a female college graduate accusing a private employer, whose job

advertisement specifically excluded ‘female applicants’, of gender discrimination. The

plaintiff’s initial complaint to the local MOHRSS office was rejected and her subsequent

administrative appeal of the agency’s decision also denied.17 Her civil lawsuit against the

employer for gender discrimination in violation of the EPL was ‘in limbo’ for over a year

before a Beijing local court accepted her case.18 The reasons given for the court’s delay was

the need to seek higher-level approval, ostensibly on the ground that employment


discrimination was ‘not a permitted cause of action’. The ‘sensitive’ nature of the lawsuit

was not mentioned, but is a more likely explanation. When the case was finally settled, the

plaintiff received an apology from the employer who also paid RMB 30,000 (US$5,000)

into a gender equality fund. In the second 2014 case, another female college graduate

brought an employment discrimination claim against a MOHRSS office in Nanjing for

excluding job applicants who did not have ‘local residency status’.19 The plaintiff failed to

convince three local courts and a labor arbitration tribunal to accept her case. When the

case was finally accepted by the order of an appeals court, the plaintiff was required to

amend her cause of action from ‘employment discrimination’ to ‘violation of personal

rights’ because local judges were unable to find legal precedents or existing rules regarding

her discrimination claim. The case was settled in favor of the plaintiff who received

RMB11,000 (US$1,800) in compensation.

Ineffective Policy Response

Although employment discrimination is well-entrenched, it has not commanded the same

policy priority as other social stability ‘hotspots’ in China. For example, in labor relations,

MOHRSS has been preoccupied with volatile and higher-profile issues such as low

employment rates for new college graduates and back-pay for rural migrant workers.20 It

has not been until recently that employment discrimination began to catch the attention of

top-level policymakers as a contributing factor to high unemployment among recent college

graduates. Yet the government’s policy response remains characterized by top-down

mobilizing of political and bureaucratic machinery, as opposed to promoting individual


assertion of rights claims through existing judicial and administrative enforcement

channels.

Since the mid-2000s, the perennial difficulty faced by millions of Chinese college

graduates in finding suitable employment captures national attention each graduation

season. According to MOHRSS, during the first half of 2014, only 7 per cent (560,000) of

that year’s 7.27 million graduates received job offers before graduation, making it ‘the

worst hiring season in history’. 21 A recent Peking University study analyzing the

employment data of 350,000 new college graduates born in the 1990’s found their

employment rate to be as low as 14.3 per cent.22 In addition to these dismal statistics is

strong employer preference for hiring male graduates. For example, female graduates

accounted for 48 per cent of graduates in 2013.23 Yet the All China’s Women’s Federation

reports that more than 90 per cent female graduates in 2013 experienced gender

discrimination in their job searches; over 70 per cent reported not being offered a job

because of gender.24

The employment status and discrimination issues impacting such a large, educated youth

population that is active on China’s social media raises ‘social stability’ concerns for the

state. This concern was most recently illustrated in the arrest of five young women’s right’s

activists around International Women’s Day on 8 March 2015 for drawing public attention

to the prevalence of sexual harassment.25 Yet for years, the official response by MOHRSS

and other central government ministries has been limited to promotion of employment of

college graduates by sponsoring job fairs, job training programs and hiring-incentives for


employers.26 Recently, however, a few high-level Party and government documents have

singled out employment discrimination as a root cause of the unemployment problem and a

possible solution. For instance, the Party’s Third Plenum Decision (2013) included

‘elimination of employment discrimination’ as part of the overall strategy for promoting

employment of college graduates. 27 In 2014, China’s State Council issued a notice for

improving college graduate employment, calling all regions and all relevant government

departments to ‘proactively adopt measures to promote equal employment [and to] prohibit

employers from setting discriminatory [hiring] requirements on the basis of ethnicity, race,

gender, religious beliefs and residency status’.28 Numerous lower level government policy

documents echoed such calls, including a 2013 directive from the Ministry of Education

prohibiting employers from imposing gender and residency status requirements at college

job fairs.29

These documents do not specifically refer to the role of public and private enforcement

tools provided by existing employment discrimination laws even though these are essential

for reaching the government’s policy goals of ‘correcting discriminatory practices’. This

‘absence’ reflects official ambivalence towards using rule of law, especially through private

court litigation, to address individual grievances against employment discrimination. These

documents also show that despite repeated official rhetoric about reining in employment

discrimination, the government’s social management options have not been sufficiently

adaptive to China’s changing labor market conditions under which many employment

decisions are no longer subject to state control. The Chinese public, especially female

college graduates bearing the brunt of discrimination at the workplace, have little


confidence that the new government rhetoric is enough to stem China’s tide of employment

discrimination.30

China’s affirmative action plan on the employment of workers with a disability is another

example of ineffective government anti-discrimination policy. Official statistics reveal that

current level of unemployment amongst China’s disabled urban residents (which accounts

for 35 per cent of the country’s 85 million disabled population) exceeds 10 per cent. This

compares to a 5 per cent unemployment rate in the general population.31 For those with a

mental disability, the employment rate is less than 10 per cent. By law (which codifies a

government affirmative action policy adopted since the early 2000s), all employers in

China are required to staff no less than 1.5 per cent of their workforce with disabled

workers. Failure to comply may result in administrative fines to employers to be paid to

various locally-managed disabled worker employment-guarantee funds.32 Recent studies by

the China Disabled Persons Union and others reveal extensive noncompliance among

employers. For instance, more than 90 per cent of employers opted to pay the fine and only

4.7 per cent of Beijing’s 445,000 employers reported hiring disabled workers.33 The extent

of non-compliance has sparked a public outcry against both the apparent failure of the

affirmative action policy and the suspected misuse by officials of the funds intended to

improve employment prospect for disabled workers.34 Such policy response which relies

primarily on administrative fines for enforcement, even when the fines are substantial and

uniformly levied, have failed to have either punitive or deterrent effects on discriminatory

employment practices against people with a disability. It merely puts a price tag on the

‘business cost’ of discrimination by employers.


Improving public enforcement: a workable compromise for rights protection in

China?

Many challenges faced by China in enforcing employment discrimination laws and policies

reflect its internal political constraints on individual rights advocacy, and the failure of the

authoritarian state’s ‘command-and-control’ social management strategies to solve

contemporary social problems. In particular, the difficulties for private court litigation to

take root as an important enforcement tool is a direct result of the Party-state’s

unwillingness to cede any real control of the management of a systemic social problem to

nongovernmental actors. In comparison, private litigation has been effectively used to

enforce equal employment rights laws and advance social changes elsewhere. In countries

such as Europe and the United States, its success is predicated upon two basic premises: A

willingness of the state to ‘deputize private litigants and their attorneys to enforce the law’

and the ability of an independent judiciary to shape laws and public policies through court

decisions. 35 Both are currently substantively missing in China’s political landscape.

Despite China’s 2015 launch of judicial reforms to reduce Party and government officials’

interference in courts’ adjudication of individual cases (see Qianfan Zhang in Chapter 1),

their primary focus appears to be mainly for improving courts’ capability and efficiency in

resolving legal disputes, and not to boost independence of the judiciary, which is to remain

loyal to the Party’s political prerogatives.36 The Party leadership makes it clear that under

its brand of ‘rule of law’, which must serve as the ‘ballast for social order and stability’,

rights claims of the masses can only be asserted through ‘legally sanctioned channels’ and


‘stirring up trouble’ as a way of resolving conflicts is not to be tolerated.37 Amidst the

recent rise in government crackdowns on the activities of nongovernment rights advocacy

groups and public interests lawyers, which specifically targets those involved in ‘workers’

rights, legal advocacy, and discrimination’, 38 whether legal advocacy of equality and

nondiscrimination rights will remain ‘legally sanctioned’ is far from politically settled. This

uncertainty will likely affect the viability of court litigation as a private enforcement option

in China, at least in the near term. Yet as the state faces mounting pressure to develop better

governance tools to replace its outdated social management regime, a central question must

be answered: Whether, in the absence of a robust private enforcement alternative, China’s

administrative enforcement system can be reformed to fit the leadership’s current rule of

law narrative while still offering improved individual rights protection?

Experience from a range of jurisdictions with longer histories of laws protecting equal

employment rights suggests that private enforcement litigation, although well-established

since the advent of civil and human rights legislation in recent decades, is a relatively new

phenomenon.39 Public enforcement administered by government agencies has also been

widely used as an alternative, or complementary mechanism, to achieve the twin policy

objectives of protecting individual rights and combating employment discrimination. In the

United States for example, Title VII of the Civil Rights Act was adopted in 1964 to prohibit

workplace discrimination. While the law relies on private court litigation as a major

enforcement mechanism,40 it also authorizes the establishment of a special government

administrative agency, the Equal Employment Opportunity Commission (the EEOC) to

lead public enforcement and implementation of federal equal employment protection laws


and policies. Today, the EEOC reviews nearly 100,000 private discrimination claims

annually through its administrative claims handling process. 41 Its investigative and

prosecutorial powers focus on a smaller number employment discrimination cases

involving more egregious and systemic violations. Similar administrative enforcement

models have been adopted in a number of other jurisdictions, including the United

Kingdom, Australia, Hong Kong and Taiwan, to complement private court enforcement,

reflecting the different statutory and policy priorities based on local conditions.

Several key features of the EEOC and similar administrative enforcement models

elsewhere may be of particular relevance in exploring public enforcement alternatives for

China’s employment discrimination laws:

• Government as first responder to privately-initiated claims. In the United States, the

EEOC is the entry point for filing all federal employment discrimination claims,

which must filed and reviewed by the EEOC before they are permitted to proceed to

private litigation in court. The EEOC’s administrative claims handling and

resolution process allows the government to identify, investigate, and prioritize

discrimination complaints based on neutral findings of merits. It also allows the

government to facilitate speedy resolution of claims through an informal mediation

process at an early stage without finding fault. When EEOC investigations find

violations, the agency will seek voluntary conciliation between employers and

employees. The threat of government prosecution if conciliation is unsuccessful

can, of course, ‘incentivize’ employers to settle. EEOC-monitored settlements can


include remedies such as back-pay and reinstatement, as well as injunctive relief to

force employers to correct discriminatory conduct and prevent future violations.

The EEOC’s administrative claims proceedings are privately-initiated and the

government is bound by a statutory obligation to receive, investigate and conciliate

charges of employment discrimination. 42 From the perspective of an individual

claimant, the EEOC not only provides an easily accessible and low cost forum for

impartial determination of their discrimination claims, but the government can also

become a powerful ally in advocating their rights once employer violations are

found.

• Government as public advocate for equal rights protection. As the chief public

advocate and enforcer of federal employment discrimination laws and policies, the

EEOC has the authority to bring public interest lawsuits against employer violations

on behalf of and for the benefit of individual claimants. In recent years, the EEOC

has focused this aspect of its enforcement efforts on selectively litigating cases

which involve systemic discrimination affecting classes of workers, a strategy that

has enabled the agency to achieve broader societal impact by targeting patterns of

employment practices in specific industries or sectors.

• Government as leader in promoting social change through collaborative

governance and voluntary compliance. The EEOC also implements the

government’s equal employment protection and antidiscrimination laws and policies

through non-adversarial education and outreach initiatives. The agency partners


with nongovernmental rights advocacy groups and employers to improve

compliance by proactively identifying problem areas and providing best practice

guidelines. This collaborative governance approach focuses on problem-solving by

promoting nongovernmental stakeholder participation and voluntary compliance.

The U.S. jargon is that this helps create a ‘win-win solution’ for the government,

employers and workers.

Administrative enforcement practices in Hong Kong and Taiwan similar to the EEOC have

been used in two recent local experiments in China: In 2012, Shenzhen adopted China’s

first gender equality legislation which provided for the establishment of an administrative

enforcement agency specialized in implementing the new law, including handling

individual gender-based employment discrimination claims. 43 In Hebei Province, an

EEOC-like multi-agency equal employment promotion commission was established in

2012 by a local municipal government to handle employment discrimination claims and to

promote nondiscriminatory employment practices through public education and outreach to

workers and employers.44 These experiments appeared to be driven by strong local interests

to explore public enforcement alternatives for improving equal employment rights

protection for women. Their experience draws attention to the benefits and challenges of

adopting an effective public enforcement model in China.

Administrative claims process as an attractive public enforcement option

Having an administrative claims process dedicated to handling employment discrimination

complaints can be an attractive public enforcement alternative for both workers and local


governments in China. By placing an affirmative duty on a government agency to receive,

investigate and resolve individual complaints, the process takes away the uncertainty faced

by victims of discrimination in China who have few options for filing their equal

employment rights claims. At the same time, the process allows local governments to

channel and prioritize potentially numerous and volatile individual complaints through

orderly disposition and provides them with an early opportunity to mediate and resolve the

disputes which can often escalate if left unresolved. Experience of the EEOC and other

similar agencies shows that just by having a government investigator listen to such

complaints helps to alleviate much of the workers’ frustration even before their claims are

resolved. This possible ‘social stability’ function of the administrative claims resolution

process can be attractive to local Chinese government officials as their performance

evaluations often hinge on their ability to resolve and reduce local disputes.

Public interest litigation as a potent enforcement tool

The enhancement of the public enforcement system also has the potential to pave the way

for the government to expand its enforcement power through public interest litigation.

Although China remains strongly averse to class action lawsuits initiated by private

litigants, recent law and policy changes, including the newly-revised Civil Procedures Law,

the Party’s 4th Plenum documents and the Supreme People’s Court newly-released

interpretation of the Civil Procedures Law, indicate the government’s increasing interest in

using public interest lawsuits - initiated by government or quasi-government entities - to

tackle issues which have broad societal impact and which will likely involve state actors as

defendants. At this stage, such legal and policy shift appears to be limited to environmental


protection and food safety cases but may open the door for discrimination issues in the

future. An EEOC-like enforcement agency tasked with the specific mandate to combat

employment discrimination could be an ideal vehicle for such public interest lawsuits. It

would not only allow the state to selectively target ‘vested interests’ represented by

government and state-owned employers and the most egregious discriminatory employment

practices affecting large classes of workers, but give the state better control over the

direction and outcome of social changes brought by such litigation.

Collaborative governance as an effective regulatory tool for voluntary compliance and

discrimination prevention.

Market-based economic reforms have changed the dynamics of labor regulation in China,

challenging the traditional state command-and-control regulatory model for implementing

and enforcing nondiscrimination policies in the workplace. The need for adopting more

innovative regulatory tools is more urgent for Chinese local governments, which are

simultaneously tasked with implementing competing central policy mandates to promote

economic and job growth on the one hand, and maintain social stability on the other hand.

There is a growing recognition of the more complex and interdependent relationship

between local governments and private sector actors, and a need to incentivize rather than

penalize employers to induce compliance. A more collaborative governance process would

allow local governments to recalibrate conventional state-centric, penalty-driven regulatory

approaches by transforming their role from enforcer to leader of problem solving processes.

This change would rely more on employer and nongovernmental stakeholders’ participation

and voluntary compliance for achieving the policy goal of discrimination prevention.


Public-private collaboration as an alternative avenue for nongovernmental rights

advocacy

Experience in Hebei and Shenzhen suggests that a more participatory model of public

enforcement can provide an alternative but limited platform for nongovernmental rights

advocacy in a challenging political environment.45 Under such a model, nongovernment

actors were shown to be able to contribute to the design and institutional capacity-building

of the new employment discrimination agency. They could lend legal expertise to facilitate

claims filing and settlement negotiation, partner with the government to help identify

discriminatory practices and propose solutions to ensure better voluntary compliance. In

addition they were able to assist the government in public outreach and awareness-raising

amongst grassroots constituents. Future public interest litigation may be a new opportunity

for nongovernment rights advocacy to work in conjunction with the government to identify

and address common concerns.

Notwithstanding the potential benefits of an improved public enforcement mechanism, the

Shenzhen and Hebei experience spotlights obstacles for developing such a system under

China’s restrictive political environment and complex government bureaucracy. First, local

reform initiatives can suffer if there is a lack of high-level government endorsement to help

remove government bureaucratic barriers against the creation of a new agency. Political

cover is often a prerequisite to ensure policy consistency and priority for longer-term

structural reforms to be institutionalized. Under China’s government bianzhi system, which

controls budgetary and personnel allocations for government agencies, the creation of a


new government agency is subject to separate central government bianzhi approval in

addition to legislative authorization. Such bianzhi approval can be particularly difficult to

obtain where local reforms lack high-level, central endorsement. Local governments can

sidestep the bianzhi issue by creating new agencies pursuant to local government executive

orders. The problem is, of course, that such entities lack their own budgets and personnel,

and must rely on the political backing of incumbent local leaders. Such an arrangement is

difficult to sustain due to cyclical changes in local government leadership and subsequent

policy re-prioritizing.

Second, local experiments are often subject to limitations imposed by existing national

laws. This can make implementation difficult. For example, under the EPL, administrative

enforcement powers are vested solely in labor supervision authorities. Without statutory

authorization, an EEOC-like new agency would lack the enforcement power to investigate

claims or to force settlements by employers when violations are found. In Hebei, the new

equal employment promotion commission was successful in stopping overt gender

discrimination hiring practices at local job fairs by issuing legal opinions advising

employers of their violations. 46 However, the commission must leverage the local

MOHRSS office’s labor supervision authority to compel employers to respond to specific

charges or to launch investigations of alleged employment discrimination practices.

At the time of writing, shifting political winds in China and increasing government

animosity toward nongovernment advocacy of nondiscrimination rights is casting long

shadows over local commitments to experiment. In an area that requires local governments


to execute the politically delicate task of enforcing individual rights protection, without

being perceived as jeopardizing its ultimate goal of maintaining social control and stability,

the political balancing is particularly daunting. In such uncertain political climate, it is

much safer for local officials, as with court officials, to steer clear of taking affirmative

actions to respond to right claims and to stay within more familiar territory of promoting

equality and nondiscrimination policies through job training and general outreach

programs.

Conclusion

Combating workplace discrimination is a continuing challenge worldwide. China is no

exception. While significant progress has been made in the PRC by adopting laws and

policies against employment discrimination, enforcement has been stymied by political

constraints. The individual exercise of equality and nondiscrimination rights through

private rights of action and nongovernmental rights advocacy face historical and

ideological opposition. Yet the state’s existing regulatory tools are clearly outdated, unable

to respond effectively to discriminatory employment practices under changing market

conditions.

If China’s current rule of law initiative is to be taken seriously, alternative enforcement

models, at the very minimum, must be considered. Advancing individual rights protection

through an administrative enforcement process that puts the government at the helm of

resolving individual discrimination claims and steering changes in employment practices

through a more participatory regulatory regime may be one workable alternative.


Experience internationally has demonstrated the efficacy of such a public enforcement

model. Experiments in Hebei and Shenzhen also show promises of such a model to

complement or be used as an alternative to private court enforcement in China.

Whether an enhanced public enforcement mechanism can achieve its intended goals within

China’s complex political and social context will depend on many factors. This is

especially so with respect to ensuring meaningful individual rights protection. These factors

include: (1) high-level political commitment and priority for the government to entertain

privately-initiated employment discrimination claims - through a dedicated administrative

claims process; (2) sufficient official tolerance of nongovernmental assertion and advocacy

of individual rights within defined channels, such as the administrative claims process

described above, to allow citizens to benefit from rights protection as promised by law; (3)

statutory enforcement powers necessary for a new equal employment agency to investigate

and resolve individual complaints and to prosecute egregious employment practices

impacting classes of workers; (4) well-defined legal principles and standards governing the

procedural and substantive parameters of the administrative claims process - to ensure

government accountability and fairness; and (5) willingness of the new agency to embrace

collaborative governance as a new regulatory tool to engage nongovernmental stakeholder

participation and increase voluntary compliance.

Notes


1 See Yan Tian, ‘Rethinking the Modern Origins of China’s Anti-Discrimination Legislation’, Peking

University Law Journal, vol. 24, no. 3 (2012), pp. 560-77.

(http://journal.pkulaw.cn/ContentPDFType.aspx?isDL=rd&id=159373).

2 Other laws include the 1995 Labor Law, the 2005 Law on the Protection of Women’s Rights, and the 2008

Law on the Protection of Disabled Persons.

3 See Article 62 of the EPL.

4 See Steven Burkank, Sean Farhan, and Herbert Kritzer, ‘Private enforcement of Statutory and

Administrative Law in the United States (And Other Common Law Countries’ (2011), in PROCEDURAL

JUSTICE 197-318 (Peter Gottwald and Burkhard Hess, eds. 2014); U of Penn Law School, Public Law

Research Paper No. 11-08.

5 See Zhou Wei, ‘The Development of China’s Anti-discrimination Law’, Tsinghua Law Journal, Vol. 6,

No. 2 (2012) (http://166.111.104.103/homepage/uploads/files/zhouwei%281%29.pdf).

6 See Supreme People’s Court, ‘Stipulations on Causes of Actions in Civil Cases (2008 and as amended in

2011). See also Liu Minghui, ‘Lack of Legislation Reflected in the First Legal Case of Gender-Based

Discrimination’, Collection of Women’s Studies, Volume 2, 2014, p. 44.

7 The inclusion of ‘carriers of infectious disease viruses’ as a protected class under the EPL is the result of

successful public pressure mounted by activists representing China’s approximately 100 million HBV

carriers. Employers are now prohibited from imposing illegal health screening requirements on job

applicants who are HBV carriers. More recently, this protection has been invoked by carriers of the AIDS

virus against discriminatory hiring decisions based on their HIV status (see

http://www.legaldaily.com.cn/index/content/2014-10/09/content_5791355.htm?node=20908).

8 See Zhou Wei, ibid.

9 See Zhejiang News, 14 November 2014, http://zjnews.zjol.com.cn/system/2014/11/14/020357961.shtml,

reporting that cause of action as “violation of personality rights” in a recent court decision on gender-

based employment discrimination.


10 See Liu Chunling, ‘Difficult Burden of Proof Issues in Gender-Based Employment Discrimination Cases

and Solutions’, China Women’s News, 19 September 2012.

(http://acwf.people.com.cn/n/2012/0919/c99013-19044852.html).

11 See Zhou Wei, ibid., at p. 25.

12 See Law on the Mediation and Arbitration of Legal Disputes (2007), Article 2.

13 See Yan Tian, ibid.

14 See Article 60 of the EPL.

15 Liu Minghui (2014: 46) calls for amending Article 11 of the State Council Regulations on Labor Security

Supervision to include employment discrimination within MOHRSS’ labor supervisory authority.

MOHRSS can, however, issue minor fines against illegal employer health screening of HBV carriers

pursuant to its own EPL implementing regulations (see MOHRSS 2007, ‘Provisions on Employment

Service and Employment Management’, Article 68).

16 See http://news.xinhuanet.com/legal/2013-01/26/c_114510501.htm.

17 See Liu Minghui, ibid. at p. 46.

18See China News Weekly, 2 August 2013, http://news.sina.com.cn/c/sd/2013-08-02/164227846264.shtml.

19 See Xinan Evening News, 8 August 2014, http://news.qq.com/a/20140806/064939.htm.

20 See Finance.china.com.cn, 9 March 2012, http://finance.china.com.cn/roll/20120308/575863.shtml.

21 See Huaxia Times, 2 August 2014, http://finance.ifeng.com/a/20140802/12846723_0.shtml. The same

report explained that the 7 per cent rate captures only those who signed up with employers prior to

graduation, as opposed to the first-time employment rate of approximately 70 per cent reported by the

Ministry of Education as of 1 July 2014. However, that 70 per cent number includes those who are self-

employed, those who continue with graduate studies in China and abroad, and those who find employment

abroad. The report goes on to say that according to the Ministry of Education statistics, approximately 2.3

http://finance.china.com.cn/roll/20120308/575863.shtml


million college graduates (about one third of the graduates) plan to attend graduate school or study abroad

during the same period.

22 See China News Network, 30 July 2014, http://finance.chinanews.com/it/2014/07-30/6441526.shtml.

23 See People’s Daily Online, 15 May 2013, http://www.chinapeace.gov.cn/2013-05/15/content_7642910.htm.

24 See People’s Daily Online, ibid. and Guangming Daily, 5 May 2014, http://news.xinhuanet.com/edu/2014-

05/05/c_126460827.htm.

25 See Stanley Lubman (9 April 2015) ‘Detained Female Activists Illustrate Contradiction in Chinese Law

Reforms’, The Wall Street Journal.

26 See Huaxia Times, ibid.

27 See Chinese Communist Party Central Committee Decision Concerning Several Major Issues in

Comprehensively Deepening Reform (2013), paragraph 43, http://news.xinhuanet.com/politics/2013-

11/15/c_118164235.htm.

28 See General Office of the State Council, ‘Notice Regarding Employment and Job Creation for 2014

Graduates from Regular Institutions of Higher Learning’ (13 May 2014,

http://www.gov.cn/zhengce/content/2014-05/13/content_8802.htm). A similar notice was issued in May

2013. See http://www.gov.cn/zwgk/2013-05/16/content_2404378.htm.

29 See http://www.chinanews.com/edu/2013/05-22/4841996.shtml.

30 See Guangming Daily, ibid., quoting a recent study by the Communications University of China

indicating that more 80 per cent of female graduates question the effective implementation of these

policies.

31 See Caixin Online, 1 October 2014, http://china.caixin.com/2014-10-01/100735095.html and Legal Daily,

3 December 2013, http://gongyi.ifeng.com/news/detail_2013_12/03/31748755_0.shtml.

32 See Article 33 of the Law on Protection of Disabled Persons and the State Council Regulation on

Employment of Disabled Persons (amended in 2008).

http://news.xinhuanet.com/edu/2014-05/05/c_126460827.htm

http://news.xinhuanet.com/edu/2014-05/05/c_126460827.htm


33 See Caixin Online, 5 June 2014, http://china.caixin.com/2014-06-05/100686574.html and New Beijing

Daily, 25 August 2011, http://gongyi.163.com/11/0825/11/7CA3HSAD00933KC8.html.

34 It is estimated that in 2010, Beijing collected RMB500 million (US$82 million) and Shenzhen collected

RMB5 billion (US$820 million) since 2005. See http://china.caixin.com/2014-06-05/100686574.html.

35 See Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the United States

(Princeton University Press, 2010), Chapter 1 ‘An Introduction to Private Enforcement Regimes’, p, 4 at

http://press.princeton.edu/chapters/s9350.pdf.

36 See Meng Jianzhu, Secretary of the CPC Central Political and Legal Committee, ‘Improving the System

of Judicial Management System and Operation of Judicial Powers’, People’s Daily, 7 November 2014,

http://legal.people.com.cn/n/2014/1107/c42510-25990066.html, distinguishing the ‘independent exercise

of adjudicative power by Chinese courts’ under the leadership of the Party from ‘Western-style judicial

independence’.

37 See Wang Yongqing, Secretary-General of the CPC Central Political and Legal Committee ‘Better Use of

Rule of Law Thought and Rule of Law Methods to Implement Legal Political Work: Deepening study of

the spirit of a series of Xin Jinping’s important speeches’, People’s Daily, 28 July 2014,

http://theory.people.com.cn/n/2014/0728/c40531-25351145.html.

38 See New York Times, 26 February 2015, http://www.nytimes.com/2015/02/27/world/asia/in-china-civic-

groups-freedom-and-followers-are-vanishing.html.

39 See Farhang, ibid. at p. 4.

40 Ibid.

41 See EEOC charge and litigation statistics, http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm and

http://www.eeoc.gov/eeoc/statistics/enforcement/litigation.cfm.

42 It is important to note that whether the EEOC finds discrimination or not, an individual claimant retains

the right to litigate his or her discrimination claim in court.

http://press.princeton.edu/chapters/s9350.pdf


43 See Nanfang Daily, ‘Shenzhen to Establish Gender Equality Promotion Agency’ (29 June 2012,

http://news.ifeng.com/gundong/detail_2012_06/29/15651201_0.shtml).

44 See reports of the Hebei experiments by Worker’s Daily, 28 October 2012,

http://politics.people.com.cn/n/2012/1028/c70731-19412192.html and China Women’s Journal, 20 March

2014, http://acwf.people.com.cn/n/2014/0320/c99013-24685120.html.

45 See Hebei Legal Daily, 13 June 2013, http://szbz.hbfzb.com/html/2013-06/13/content_25913.htm?div=-1,

describing collaborative efforts among the local municipal government, the All China Women’s

Federation (the Party’s official women’s organization), and nongovernment public interest lawyers in the

Hebei experiment.

46 See Hebei Workers Daily, 29 June 2013, http://www.hbgrb.net/epaper/images/2013-

06/29/7B/WQZX7bWQZX7BC629_0001.PDF.

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